Citation Nr: 9917769
Decision Date: 06/28/99 Archive Date: 07/07/99
DOCKET NO. 94-24 848 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for arthritis.
2. Entitlement to an effective date earlier than July 14,
1992 for a 20 percent evaluation for lumbosacral strain.
3. Entitlement to an evaluation in excess of 20 percent for
lumbosacral strain.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jeffrey J. Schueler, Counsel
INTRODUCTION
The appellant had active service from December 1963 to
November 1964. This matter comes to the Board of Veterans'
Appeals (Board) from rating decisions of the Department of
Veterans Affairs (VA) Houston Regional Office (RO).
In a September 1991 rating decision, the RO denied service
connection for arthritis of the lumbar spine and an
evaluation in excess of 10 percent for service-connected
lumbosacral strain. By March 1993 rating decision, the RO
continued the denial of service connection for arthritis and
granted a 20 percent evaluation, effective July 14, 1992, the
date of VA examination for service-connected lumbosacral
strain. The appellant disagreed with each determination,
thereby conferring on the Board jurisdiction over the issues
listed on the title page of this decision. Also, the
appellant filed a claim for nonservice-connected pension
benefits, which the RO denied in a May 1994 rating decision.
By September 1997 rating decision, though, the RO granted the
claim for nonservice-connected pension. That decision
constituted a full award of that benefit. See Grantham v.
Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (overruling
West v. Brown, 7 Vet. App. 329 (1995) and ruling that a
notice of disagreement applies only to the element of the
claim being decided, such as service-connectedness). See
also Holland v. Gober, 124 F.3d 226 (Fed. Cir. 1997), rev'd
sub nom. Holland v. Brown, 9 Vet. App. 324 (1996). For this
reason, the Board no longer has jurisdiction over the claim
for nonservice-connected pension benefits.
FINDINGS OF FACT
1. No competent medical evidence has been submitted linking
the post-service findings of arthritis to service or to a
service-connected disability.
2. With respect to the claims of entitlement to an effective
date earlier than July 14, 1992 for a 20 percent evaluation
for lumbosacral strain, all available relevant evidence
necessary for an equitable disposition of the appeal has been
obtained.
3. Muscle spasm and loss of lumbar spine motion became
manifest with regard to the appellant's service-connected
lumbosacral strain as of April 1, 1992.
CONCLUSIONS OF LAW
1. The claim for service connection for arthritis is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. An effective date of April 1, 1992 is warranted for a 20
percent evaluation for lumbosacral strain. 38 U.S.C.A.
§ 5110; 38 C.F.R. § 3.400(o)(2) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for Arthritis
The appellant contends that he currently has arthritis
affecting his lumbar spine that is related to his service.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection
may also be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
Because the appellant served continuously for 90 days or more
during a period of war or during peacetime service after
December 31, 1946, arthritis manifested to a degree of 10
percent within one year from the date of termination of such
service shall be presumed to have been incurred in service,
even though there is no evidence of such disease during the
period of service. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
The appellant also contends that his claimed arthritis of the
lumbar spine is related to his service-connected lumbosacral
strain disability. Service connection on a secondary basis
is warranted when it is demonstrated that a disorder is
proximately due to or the result of a disorder of service
origin. 38 C.F.R. § 3.310. Additionally, when aggravation
of a non-service-connected condition is proximately due to or
the result of a service-connected condition, the appellant
shall be compensated for the degree of disability (but only
that degree) over and above the degree of disability existing
prior to the aggravation. Allen v. Brown, 7 Vet. App. 439,
448 (1995).
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence of a
well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim
is a plausible claim that is meritorious on its own or
capable of substantiation. See Murphy, 1 Vet. App. at 81.
An allegation of a disorder that is service connected is not
sufficient; the appellant must submit evidence in support of
a claim that would "justify a belief by a fair and impartial
individual that the claim is plausible." 38 U.S.C.A.
§ 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit,
5 Vet. App. at 93. Lay assertions of medical causation
cannot constitute evidence to render a claim well grounded
under 38 U.S.C.A. § 5107(a); if no cognizable evidence is
submitted to support a claim, the claim cannot be well
grounded.
In order for a service-connection claim to be well grounded,
there must be (1) competent medical evidence of current
disability; (2) lay or medical evidence of incurrence or
aggravation of a disease or injury in service; and (3)
competent medical evidence of a nexus between the in-service
injury or disease and the current disability. Caluza v.
Brown, 7 Vet. App. 498, 506 (1995). In order for a claim for
secondary service connection for a disorder clearly separate
from the service-connected disorder to be well grounded, the
appellant must present medical evidence to support the
alleged causal relationship between the service-connected
disorder and the disorder for which secondary service
connection is sought. Jones v. Brown, 7 Vet. App. 134, 137
(1994).
Looking first at whether the claim is well grounded on a
direct basis, the Board notes that the evidence of record
shows a current arthritic disorder. Several documents
alluded to the possible presence of an arthritic disorder
involving the lumbar spine. A September 1988 private
psychiatric clinical record noted a past medical history of
traumatic arthritis of the lumbar spine. A November 1988
VA clinical record questioned whether there was arthritis of
the lumbar spine. A July 1992 VA examination report noted
probable lumbar stenosis, without x-ray evidence of bony
pathology. A January 1995 VA examination report discussed
some narrowing of the disc spaces in the lumbar spine. The
January 1999 VA examination report, though, affirmatively
diagnosed mild degenerative arthritic changes involving the
lumbar spine. This evidence constitutes competent medical
evidence of a current disorder, thereby satisfying the
initial element of a well-grounded claim. See Caluza, 7 Vet.
App. at 506. Additionally, the appellant's contentions of an
injury in service, as well as the low back symptomatology
noted in the service medical records, act as lay or medical
evidence showing a disease or injury in service. See id;
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995); King v.
Brown, 5 Vet. App. 19, 21 (1993) (truthfulness of evidence
must be presumed when determining whether a claim is well
grounded).
As for the third element of a well-grounded claim, the
appellant has failed to submit competent medical evidence
linking the current disorder with the symptomatology shown in
service. See Caluza, 7 Vet. App. at 506. The private and VA
clinical and examination reports noted arthritis and
narrowing of the lumbar disc spaces, but, with only two
exceptions, failed to discuss the origin of these findings.
The first exception, the September 1988 private psychiatric
clinical record, noted a past medical history of traumatic
arthritis of the lumbar spine. This reference to a past
traumatic lumbar spine injury, though, was silent as to the
date of that injury. The appellant claims he suffered such
an injury in service, but the service medical records were
silent as to a specific injury. Moreover, the reference was
only to past medical history in a document concerning
psychiatric rather than orthopedic treatment; thus, the
document was not intended to convey the etiology of the past
arthritic history, which may have been before or after
service. These findings, therefore, cannot constitute
competent medical evidence linking the current disorder to
service.
The second exception is the January 1999 VA examination
report that diagnosed mild degenerative arthritic changes
involving the lumbar spine. The RO asked the examiner to
render an opinion as to when arthritis of the spine had its
onset. The examiner noted, based on review of the claims
file, that arthritis was not found until the 1990s and that
these findings were consistent with a normal aging
degeneration. The examiner's conclusion was directly
contrary to the appellant's contentions, and therefore cannot
comprise competent medical evidence of a relationship as
contended by the appellant.
The only remaining evidence alleging a relationship between
the current arthritic disorder and service is the appellant's
own contentions. Generally, statements prepared by lay
persons, who are ostensibly untrained in medicine, cannot
constitute competent medical evidence to render a claim well
grounded. A layperson can certainly provide an eyewitness
account of an appellant's visible symptoms. Layno v. Brown,
5 Vet. App. 465, 469 (1994). However, the capability of a
witness to offer such evidence is different from the
capability of a witness to offer evidence that requires
medical knowledge. For the most part, a witness qualified as
an expert by knowledge, skill, experience, training, or
education must provide medical testimony. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992). The record does
not show that the appellant has the requisite medical
expertise to render such an opinion. Thus, because the
appellant has not submitted competent medical evidence
linking the current disorder with service, he has not met his
duty of submitting a plausible claim.
As for whether the claim of secondary service connection is
well grounded, such a claim requires medical evidence support
the alleged causal relationship between the service-connected
disorder and the disorder for which secondary service
connection is sought. Jones, 7 Vet. App. at 137. The only
medical evidence alluding to such a relationship is the
January 1999 VA examination report that diagnosed mild
degenerative arthritic changes involving the lumbar spine.
The RO asked the examiner to render an opinion as to whether
it is as likely as not that the current arthritis was
secondary to the service-connected lumbosacral strain. The
examiner noted that, on review of the claims file, the
current arthritic disorder was not related to the service-
connected lumbosacral strain. The remaining medical evidence
revealed only current arthritic findings that did not discuss
any relationship to the service-connected disability. The
appellant contends that there is such a relationship, but his
lay contentions cannot rise to the level of competent medical
evidence. Espiritu, 2 Vet. App. at 494-95.
In light of the evidence of record and based on the analysis
above, the Board concludes that the appellant has not
submitted competent medical evidence linking the current
arthritic disorder of the lumbar spine to service or to the
service-connected lumbosacral strain. Because such evidence
has not been submitted, the claim of service connection for
arthritis is not well grounded. Because the claim is not
well grounded, VA is under no duty to assist the appellant in
further development of the claim. 38 U.S.C.A. § 5107(a);
Murphy, 1 Vet. App. at 81.
Although where claims are not well grounded VA does not have
a statutory duty to assist the claimant in developing facts
pertinent to the claim, VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
the application. This obligation depends upon the particular
facts of the case and the extent to which VA has advised the
claimant of the evidence necessary to be submitted with a VA
benefits claims. Robinette v. Brown, 8 Vet. App. 69 (1995).
In this case, the RO fulfilled its obligation under § 5103(a)
in the September 1991 statement of the case and in the May
1992, June 1993, February 1995, October 1997, and February
1999 supplemental statements of the case in which the
appellant was informed that the reason for the denial of the
claim was the lack of competent evidence linking the current
arthritic disorder to service or to a service-connected
disability. Furthermore, by this decision, the Board is
informing the appellant of the evidence which is lacking and
that is necessary to make the claim well grounded.
When the Board addresses in its decision a question that has
not been addressed by the RO, in this case well groundedness,
it must consider whether the appellant has been given
adequate notice to respond and, if not, whether he has been
prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384
(1993). The Board finds that the appellant has been accorded
ample opportunity by the RO to present argument and evidence
in support of his claim. Any error by the RO in deciding
this case on the merits, rather than being not well grounded,
was not prejudicial to the appellant.
II. Effective Date Earlier Than July 14, 1992
for a 20 Percent Lumbosacral Strain Evaluation
The RO granted service connection for lumbosacral strain and
assigned it a noncompensable rating by November 1971 rating
decision. The appellant appealed that aspect of the rating
decision awarding a noncompensable rating. By May 1973
decision, the Board granted a 10 percent evaluation. The
appellant subsequently filed other claims seeking an
evaluation in excess of 10 percent, but these claims were
denied in October 1979 and September 1989 rating decisions.
A claimant or representative must file a notice of
disagreement with an adverse rating decision within a year
from the date RO mails notice of the determination.
Otherwise, the determination becomes final. 38 U.S.C.A.
§ 7105(c); 38 C.F.R. § 3.104(a), 20.302(a). The appellant
was notified of the September 1989 rating decision by letter
dated September 26, 1989. Since an appeal was not filed
within a year of the mailing of that letter, the September
1989 decision became final.
In his next communication with VA in March 1991, the
appellant contended that his service-connected lumbosacral
strain was more severe than represented by the 10 percent
evaluation. The RO denied the claim by rating decisions in
May 1991 and June 1991. He was notified of these
determinations in a June 14, 1991 letter from the RO. It was
from these rating decisions that the appellant perfected an
appeal seeking an evaluation in excess of 10 percent for his
lumbosacral strain.
In a March 1993 rating decision, the RO granted a 20 percent
evaluation for lumbosacral strain, effective July 14, 1992,
the date of VA examination. The appellant timely disagreed
with the effective date assigned, arguing that the disability
increased in severity earlier than the July 1992 VA
examination.
The effective date of an evaluation and award of compensation
based on a claim for increase will be the date of receipt of
the claim or the date entitlement arose, whichever is the
later. 38 C.F.R. § 3.400. For a disability evaluation, the
effective date will be the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred if the claim is received within one year from such
date and otherwise, the date of receipt of claim.
38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.1(r), 3.151, 3.400(o)(2);
Wells v. Derwinski, 3 Vet. App. 307 (1992).
The applicable statutory and regulatory provisions require
that VA look to all communications from the appellant that
may be interpreted as applications or claims - formal and
informal - for benefits. In particular, VA is required to
identify and act on informal claims for benefits.
38 U.S.C.A. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.400(o)(2),
3.155(a); Servello v. Derwinski, 3 Vet. App. 196, 198-200
(1992). An informal claim must identify the benefit sought.
38 C.F.R. § 3.155(a).
The law does not permit an effective date in this case
earlier than March 1990, one year prior to the date of
receipt of the appellant's claim for an evaluation in excess
of 10 percent for lumbosacral strain. Therefore, the Board
must look to the evidence of record relevant to the period
from March 1990 through July 14, 1992 to determine whether
the evidence supports an earlier effective date for the 20
percent evaluation.
In conducting this review, the Board is mindful of the
criteria of Diagnostic Code 5295 for lumbosacral strain,
under which the disability has been rated. Under this
criteria, a noncompensable evaluation is assigned for
lumbosacral strain with characteristic pain on motion. A 20
percent evaluation for lumbosacral strain with muscle spasm
on extreme forward bending, loss of lateral spine motion,
unilateral, in standing position. The disability might also
be evaluated under the criteria of Diagnostic Code 5292 for
limitation of motion of the lumbar spine, where slight
limited motion warrants a 10 percent evaluation and moderate
limited motion warrants a 20 percent evaluation. Also
applicable is the criteria of Diagnostic Code 5293 for
intervertebral disc syndrome, where mild symptoms warrant a
10 percent evaluation and moderate, recurring attacks warrant
a 20 percent evaluation. 38 C.F.R. § 4.71a.
May and August 1990 VA clinical records showed that the
appellant complained of low back pain radiating into his
lower extremities with associated limited motion. February
and March 1991 VA clinical record noted similar findings.
VA clinical records in June 1991 noted low back pain and
tenderness without spasm. One examiner indicated that the
pain was "subjective"; another examiner reported that the
appellant "exhibits none of the signs associated [with low
back pain]." VA clinical records in July 1991 showed, in
the words of the appellant, "unbearable" radiating low back
pain, numbness, and tenderness with full range of motion.
February 1992 VA clinical records revealed complaints of low
back pain radiating into the buttocks, tenderness, and
slightly guarded gait. A March 1992 VA clinical record
showed lumbosacral strain with pain and tenderness.
An April 1, 1992 VA clinical report indicated low back pain
with spasm and tenderness in the lower right lumbar spine.
A VA clinical record in May 1992 showed low back pain that
was better and spasm in the lumbar area. VA clinical records
in June 1992 noted low back pain aggravated by exercise with
tenderness and decreased range of motion.
The appellant had no complaint or finding of muscle spasm
until that noted in the April 1, 1992 VA clinical record.
Examiners there and in later VA clinical records noted muscle
spasm, one criteria for a 20 percent evaluation under
Diagnostic Code 5295. Similarly, the record first showed a
loss of lumbar motion, the other criteria for a 20 percent
evaluation under Diagnostic Code 5295, in June 1992 VA
clinical records. Thus, the evidence supports a 20 percent
rating under Diagnostic Code 5295 as of the April 1, 1992 VA
clinical record. The preponderance of the evidence is
against an effective date earlier than April 1, 1992 as the
record does not show loss of motion or muscle spasm earlier
than such date. The record does not reveal any reference to
additional function loss of the lumbar spine due to pain on
use that might warrant consideration of the principles
discussed in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).
Since the claim may be granted with reference to the criteria
of Diagnostic Code 5295, the Board need not consider whether
the claim may be supported under the criteria of Codes 5292
and 5293. Based on the evidence of record and the analysis
above, the evidence supports an effective date of April 1,
1992 for a 20 percent evaluation for lumbosacral strain.
ORDER
Service connection for arthritis is denied.
Entitlement to an effective date of April 1, 1992 for a 20
percent evaluation for lumbosacral strain is granted, subject
to the law and regulations governing the payment of monetary
benefits.
REMAND
In the January 1999 VA examination report, the examiner noted
review of the claims file, including a March 21, 1996
magnetic resonance image (MRI) report of the lumbar spine and
a November 23, 1998 X-ray report of the lumbar spine. The
record does not include either report. VA must ensure that
all items relevant to the appeal are included in the record.
Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2
Vet. App. 611, 613 (1992). The claim will be remanded so
that these documents may be associated with the claims file.
The case is REMANDED for the following development:
1. The RO should request that the
appellant supply the names and addresses
of any individuals or treatment
facilities that have treated him for
lumbosacral strain since January 1999,
and the dates of such treatment. After
securing any necessary releases, the RO
should obtain complete clinical records
of such treatment and associate them with
the claims folder.
2. The RO should obtain copies of the
March 21, 1996 MRI report and the
November 23, 1998 X-ray report referred
to in the January 1999 VA examination
report. All documents obtained should be
associated with the claims file.
3. When the aforementioned development
has been completed, the RO should review
the record to ensure it is in compliance
with this REMAND. If not, the RO should
undertake remedial action before
returning the claim to the Board. See
Stegall v. West, 11 Vet. App. 268, 270-71
(1998).
After the development requested above has been completed to
the extent possible, the RO should again review the record.
If any benefit sought on appeal, for which a notice of
disagreement has been filed, remains denied, the appellant
and his representative should be furnished a supplemental
statement of the case and given the opportunity to respond.
Then, the case should be returned to the Board.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or the U.S. Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999)
(Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board and the Court. See M21-1, Part
IV, paras. 8.44-8.45 and 38.02-38.03.
J. F. Gough
Member, Board of Veterans' Appeals